that a separate contract for each article exist. The mere fact that a separate price was made for each article will not be enough.53 A separate price is evidence, though not conclusive, of a separate contract. 54

§ 1463. The buyer must put the seller in statu quo.

Though courts which allow rescission for breach of warranty do not regard the temporary use by the buyer necessary to show the defect as such a benefit to the buyer or such an injury to the goods as to preclude the right of rescission, he cannot generally rescind if the goods are injured or destroyed. 55 Unless the seller was guilty of fraud this is probably true though the destruction or injury is without the buyer's fault. 56 An exception has, however, been made where the injury to the goods was caused by the very defect against which the seller warranted;57 also where the goods were worthless when they were bought;58 and where the buyer is induced by the seller to retain

53 Mizell v. Watson, 57 Fla. 111, 49 So. 149. See also Barrie v. Earle, 143 Mass. 1, 8 N. E. 639, 58 Am. Rep. 126; Roshkoff v. Lieberman's Millinery, Inc., 167 N. Y. S. 291, and supra, §§ 720, 861.

54 See supra, § 863.

55 Curtis v. Hannay, 3 Esp. 82; Aultman v. Wirth, 54 Ill. App. 17; Rice v. Friend Bros. Co., 179 Ia. 355, 161 N. W. 310; Libby v. Haley, 91 Me. 331, 39 Atl. 1004; Gerli v. Mistletoe Silk Mills, 83 N. J. L. 7, 84 Atl. 1065; McKnight v. Nichols, 147 Pa. St. 158, 23 Atl. 399.

5 Nutting v. Watson, 84 Neb. 464, 121 N. W. 582, 25 L. R. A. (N. S.) 823. It is well settled that the risk is on the buyer where a sale is made by the terms of which he has an option to return, until he exercises the option. See supra, §809. There is no reason to suppose that the rule would be otherwise where the right to return depended on a privilege given by the law instead of on agreement of the parties.

Thus in Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep.

485, it was held that a buggy, the springs of which were warranted strong, might be returned though one of the springs had been broken while in the buyer's possession. So in Lawley & Son Corp. v. Park, 138 Fed. 31, 70 C. C. A. 399, a yacht warranted of a certain material was held returnable by the buyer though it had been seriously injured, the injury being due to the defective material of which it was constructed. So in Rosenthal V. Rambo, 165 Ind. 584, 76 N. E. 404, 3 L. R. A. (N. S.) 678, it was held that even though the contract provided as a condition of return that the horse sold should be in as sound condition when returned as when sold it might be returned though in worse condition than when bought, when such unsoundness resulted from the natural development of a disease existing at the time of the sale.

58 Buss v. Allison Glass Co., 146 Mo. App. 71, 123 S. W. 949; Smith v. Means, 170 Mo. App. 158, 155 S. W. 454; First Nat. Bank v. Mineral Wells &c. St. Ry. (Tex. Civ. App.), 133 S. W. 1099.

the property temporarily and attempt to remedy the defect, which is thereby increased. 59 Moreover, when the buyer has resold a small portion of the goods before discovering the defect, he has been allowed to rescind on offering to return the remainder and the price for what was resold. In seeking rescission the buyer must take the position of an actor. When the buyer rejects goods because they are not what the contract requires, he is under no obligation to return them; he may simply refuse to regard them as his.61 But where the property in the goods has passed and the buyer wishes to revest the property in the seller, a return or offer to return the goods is necessary. "It is not sufficient for a buyer who has taken delivery of the

goods at the vendor's place of business merely to express a willingness or make a proposal to return the goods, or simply to give notice to the seller that he holds the goods subject to his order, or to request him to come and take them back. But, if he would rescind the contract, he must return or tender back the goods to the seller at the place of delivery, unless, upon making the offer so to do, he is relieved of the obligation, as stated, by a refusal to receive them if tendered." 62 It is no exception to this rule that if the original place of delivery was the buyer's place of business, mere notice to the seller to remove the goods is sufficient. The buyer need not, however, actually deliver the goods to the seller unless the seller repays any portion of the price which has been paid. The buyer has a lien on the goods to secure such repayment.64

63

§ 1464. The buyer's remedies are mutually exclusive.

It seems to be generally assumed that if a buyer elects the remedy of rescission for breach of warranty he is thereby precluded from bringing an action for damages and it has been so decided.65 The Uniform Sales Act adopts this rule. As an

62 Milliken v. Skillings, 89 Me. 180, 36 Atl. 77, quoted and followed in Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 Am. St. 670. See also the quotation from Pleak v. Marks, 171 Ia. 551, 152 N. W. 63, in note 59. Lake v. Western Silo Co., 177 Ia. 735, 158 N. W. 673; Stevens Tank & Tower Co. v. Berlin Mills Co., 112 Me. 336, 92 Atl. 180, 182; Skillings v. Collins, 224 Mass. 275, 112 N. E. 938, Ann. Cas. 1918 D. 424; McKinley v. Small, 178 Mich. 555, 146 N. W. 230. See also Sherrill v. Coad, 92 Neb. 406, 138 N. W. 567. Cf. Rood v. Priestley, 58 Wis. 255, 16 N. W. 546. In Reeves v. Younglove, 164 Ia. 151, 145 N. W. 502; Smith v. Means, 170 Mo. App. 158, 155 S. W. 454; Crosby v. Wells, 73 N. J. L. 790, 67 Atl. 295; Jones v. McGinn, 70 Oreg. 236, 140 Pac. 994; J. I. Case Threshing Mach. Co. v. Johnson, 140 Wis. 534, 122 N. W. 1037, it was held that the clearly announced decision

of the buyer not to accept a return of the goods, made it unneccessary to offer them at the place of delivery.

63 Fairbanks v. Walker, 76 Kan. 903, 92 Pac. 1129, 17 L. R. A. (N.S.) 558; P. H. & F. M. Roots Co. v. New York Foundry Co., 56 N. Y. Misc. 687, 107 N. Y. S. 742.

64 E. T. Kenney Co. v. Anderson, 26 Ky. L. Rep. 367, 81 S. W. 663. See also Weeks v. Robert A. Johnson Co., 116 Wis. 105, 92 N. W. 794.

65 Abraham v. Browder, 114 Ala. 287, 290, 21 So. 818; Shaw v. Water Supply Co., 23 Col. App. 110, 128 Pac. 480; Heagney v. J. I. Case Mach. Co., 4 Neb. (Unof.) 745, 96 N. W. 175; McCormick Machine Co. v. Brown, 5 Neb. (Unof.), 356, 98 N. W. 697; Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325; Osborne v. Poindexter (Tex. Civ. App.), 34 S. W. 299; Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337, 101 Pac. 894, 27 L. R. A. (N. S).

original question, at least where a contract preceded the actual sale, it might well be argued with some force that the buyer should have a right to rescind the transfer of property without rescinding the contract, and in this way restore the property to the seller and yet hold him liable in damages for failure to keep his contract.66

The right of the buyer, when sued for price, to recoup because of the diminished value of the goods, and yet bring an action later to recover consequential damages for breach of the warranty, has been upheld in England in a leading case. The court there said "that in the action in which recoupment had been allowed the buyer could not recover consequential damages and that, therefore, recovery should be allowed in the subsequent action on the warranty." It is true that in the former action the consequential damages could not be set up, but if the buyer elects a remedy which deprives him of a right to recover certain damages, the court cannot undo his election. In theory it seems clear that the right of recoupment must be based on the assumption that not simply the sale is rescinded but the whole contract to buy and sell. The buyer may stand on his contract, in which case he is liable for the price agreed, and may sue or counterclaim for the seller's failure to perform his contract, or he may assert in effect that the goods are not what the contract called for, and that he will substitute for his liability on that contract a quasi-contractual obligation to pay the value of what he has received. Accordingly it has been held in the United States that the buyer must elect between these two remedies, and the American law generally denies the possibility of maintaining an independent action to recover a balance of damages which were not recoverable when the claim was used in recoupment.69 Under the Sales Act it is clear that 925; Blake Rutherford Farms Co. v. 67 Mondel v. Steel, 8 M. & W. 858. Holt Mfg. Co., 70 Wash. 192, 126 68 Jones v. Charles Warner Co., 2 Pac. 418; Park v. Richardson, 81 Wis. Boyce (Del.), 566, 83 Atl. 131; Im399, 51 N. W. 572. pervious Products Co. v. Gray, 127 Md. 64, 96 Atl. 1 (under Sales Act); Gilmore v. Williams, 162 Mass. 351, 38 N. E. 976; Berman v. Henry N. Clark Co., 194 Mass. 248, 80 N. E. 480.

66 This was so contended in the dissenting opinion in Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337, 101 Pac. 894, 27 L. R. A. (N. S.), 925, and so held in Dietrich v. Badders, 27 Del. 499, 90 Atl. 47.

69 McLane v. Miller, 12 Ala. 643; Penny v. Corey, 147 Ala. 617, 41 So.

the buyer can have but a single remedy for breach of warranty.70

In any other kind of bargain than that of a sale of goods by description, there seems even less possibility of question that rescission when rightfully exercised is an exclusive remedy and that the injured party who rescinds can claim nothing beyond restitution.

§ 1465. Where no performance has been rendered.

While it is ordinarily the case that a party who seeks to rescind or avoid a contract because of a breach of contract or repudiation by the other party has performed at least in part and desires restitution of what he has given or its value, yet it seems to follow that the same course is open to one who has not performed at all. Such a person will not wish ordinarily to avoid the contract altogether, because that course would deprive him of any right of action whatever. He could seek neither restitution, because he had given nothing, nor compensation in damages for breach of the contract, because he had put an end to the promise on which he must sue. Nevertheless, there are many cases where the injured party is content merely to terminate his legal relations with the other party to the contract without more. That he may do this is perhaps intimated by Parke, B., in Phillpotts v. Evans; 71 it is expressly stated by Crompton, J., in Hochster v. De La Tour,72 where the repudiation preceded the time for performance by either party. It was so decided in King v. Faist.73 There the plaintiff had stated he would not perform unless the defendant gave a guarantee which the contract did not require; whereupon the defendants wrote that they would not perform, and they did not. The

978; Edge Moor Iron Co. v. Brown &c. Co., 6 Pennew. (Del.) 10, 13, 4 L. R. A. (N. S.) 858; Britton v. Turner, 6 N. H. 481, 495, 26 Am. Dec. 713; Fabbricotti v. Launitz, 3 Sandf. (N. Y.) 743.

*Impervious Products Co. v. Gray, 127 Md. 64, 96 Atl. 1; Gerli v. Mistletoe Silk Mills, 80 N. J. L. 128, 76 Atl. 335; Regina Co. v. Gately Furniture Co., 154 N. Y. S. 888, 171 App. Div. 817, 157 N. Y. S. 746;

Kaufman v. Levy, 102 N. Y. Misc. 689, 169 N. Y. S. 454.

715 M. & W. 475, 477. See also Grimaldi v. White, 4 Esp. 95.

722 E. & B. 678, 685. "When a party announces his intention not to fulfil the contract, the other side may take him at his word and rescind the contract."

73 161 Mass. 449, 37 N. E. 456.